Unfair Dismissal

There are five fair reasons for dismissing an Employee and unless one of those reasons is followed, together with a fair procedure, then the dismissal will be an unfair dismissal.  In addition, if an Employer does not give the required period of notice under the Contract of Employment then there can be a claim for wrongful dismissal or unfair dismissal.

How to dismiss an Employee fairly?

Whilst most Employees need a qualifying period of two years before they can bring a claim for unfair dismissal there are other rights that accrue on day one.  These include dismissals connected with pregnancy or childbirth, whistleblowing, asserting a statutory right and acts of discrimination. 

There must be a fair reason for the dismissal.  There are five fair reasons which are:-

• This could be a single act of Gross Misconduct or a series of more minor acts.

• Capability or qualifications. This includes ill health, poor performance or a lack of formal qualifications.

• When a redundancy procedure is correctly followed it is a fair reason for dismissal.

• If it becomes illegal to employ someone (for example because of their right to work in this country) then it is possible to fairly dismiss them.

• “Some other substantial reason”. This is a catchall category.

Fair procedure and reasonable conduct

Most Contracts of Employment or Staff Handbooks will set out the procedure that is followed in disciplinary procedures, but in the absence of that the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed.   If a fair procedure is not followed then any eventual compensation can be increased by 25%.

The Employer must also dismiss reasonably.  As well as following a fair procedure the Employer must come to a reasonable decision, that the matters complained of against the Employee justified the dismissal.  It is also important to follow the notice period in the Contract of Employment;, if there is a payment in lieu of notice clause (PILON) then the Employee can be paid instead of working their notice.

Employees who are guilty of gross misconduct can be dismissed without the right to working their notice or a payment in lieu.

It is very important not to discriminate and dismiss someone on the basis of a protected characteristic.   Protected characteristics are set out in the Equality Act (see separate note) and protect people against discrimination on the grounds of their sex, disability, race, religion, sexual orientation, gender reassignment or an unjustified age related reason.